With the successful passage of the Digital Markets, Competition, and Consumers Act, we are now in a position to build on the considerable momentum to make the digital markets fairer for all players, including news publishers.
The legislation is a major achievement considering the opposition it faced from some of the world’s most powerful companies and, at the News Media Association, we are proud of the role we played in securing it. Now, with a new government in place, the focus shifts to the considerable work ahead to ensure the legislative vision becomes a commercial reality.
The Competition and Markets Authority is currently consulting on the guidance, which will set out how the regulator interprets and uses its new powers. The CMA has flexibility in law to target big tech’s diverse business models and must be able to keep pace with fast-moving technology.
Attempts by big tech to make the guidance highly prescriptive should be firmly resisted, both by the regulator and the new Secretary of State [of Business and Trade, Jonathan Reynolds] when they come to approve it (something they should do swiftly to avoid delaying the benefits of this new regime).
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[Read more: Digital Markets Bill passed paving way for publisher ‘level playing field’ with big tech]
The approval of the guidance – expected to happen around October – will fire the starting gun on the CMA’s formal efforts to ‘designate’ big tech services and set ‘conduct requirements’. It is expected to start by investigating three or four digital services over the following 12 months, with the first having requirements in force by mid-2025.
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However, the CMA has already begun the work of prioritising which services it will focus on first. This means all news publishers should be engaging proactively with the regulator now to make the case for news journalism, and the relationship with key digital gatekeepers, to be a top priority.
As the CMA decides on the scope of a designation, it must account for technological developments that have taken place since its Online Platforms and Digital Advertising Market Study, chiefly the rapid growth of generative AI. Incumbent big tech firms have leveraged their existing market power to build the most powerful large language models and are using this power to drive consumer use of their LLMs and gen AI.
Google’s AI Overviews in Search are a key example. It was expected the CMA would compel Google to negotiate ‘fair and reasonable terms’ for the value news brings to traditional search, but the regulator must also act to ensure negotiations occur for the value news brings to the LLM powering AI overviews and evolving search tools.
[Read more: ‘Devastating’ potential impact of Google AI Overviews on publisher visibility revealed]
Otherwise, as users increasingly rely on AI summaries rather than original content on a publisher’s website, negotiations risk ignoring a crucial part of the platform-publisher relationship. Crucially, the new government must give the CMA the political backing to be bold in its regulation of new technologies.
In the EU, big tech has defied the provisions set out in the Digital Markets Act. Here in the UK, publishers must work closely with the CMA to ensure the drafting of the requirements is watertight and doesn’t give big tech the space to confound the letter or spirit of the law. A significant advantage of the UK law over the EU is flexibility and platform specificity. Once a big tech service is designated, publishers must work in tandem with the CMA to hold these platforms to account.
We have achieved a lot already but there is more work to be done to realise the ultimate prize. The NMA stands ready to bring news publishers together to work with the CMA, challenger firms across the tech space – and big tech – to ensure the Digital Markets Unit regime can rebalance the UK’s digital economy as envisaged by lawmakers.
The CMA has repeatedly set out its vision for a ‘participative’ approach to its regulation; by participating in every decision-making process news publishers will reap the benefits of this new approach to digital regulation and ensure a truly sustainable future for UK journalism in the process.
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